Despite the prevailing atmosphere in the country and Congressí passage of laws that grant the Attorney General sweeping powers to detain foreign nationals suspected of having connections to terrorism, on Wednesday, December 19, 2001 the United States Court of Appeals for the Third Circuit issued a rather significant decision in which it held that mandatory detention under section 236(c) of the Immigration and Nationality Act violates the Due Process and is unconstitutional.

The provision at issue was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), and reflected what Congress stated to be an effort to streamline and expedite the removal of "criminal aliens" from the United States. Section 236(c) mandates that any alien convicted of an "aggravated felony" be detained, and only gives the Attorney General discretion to release an individual if their release is necessary to provide protection to a witness, a potential witness, or a person cooperating with a criminal investigation, and even then only if that individual will not pose a danger to the safety of others or a flight risk. As a result of this provision, many aliens with criminal convictions were placed in INS custody immediately upon completing their criminal sentences. Furthermore, the Immigration Judgeís discretion to set bond after examining the individualís risk of flight or danger to society was taken away. The law requires their continued detention throughout administrative proceedings and in case of appeals to the federal courts, throughout those proceedings, as well. For anyone familiar with the process, it can take months and even years. Given that IIRAIRA also expanded the definition of "aggravated felony" to cover many offenses that would not necessarily be classified as such under the applicable state or federal law, this meant that individuals could be held in INS custody for far longer periods than their original criminal sentence.

Many individuals subject to the mandatory detention laws challenged the constitutionality of their detention by filing writs of habeas corpus in federal district courts throughout the country. Many courts found the provision to be unconstitutional and ordered the release of the detained alien, or a prompt individualized hearing to determine whether the individual could be released on bond. Up until the Third Circuit case, only one other Circuit Court, the Circuit Court of Appeals for the Seventh Circuit had addressed the constitutionality of section 236(c). In the case Parra v. Perryman, the Seventh Circuit Court upheld the provision, finding that a fundamental liberty interest is not implicated in the case of criminal aliens subject to orders of removal, who have little chance of succeeding in the merits of their claim.

The Third Circuit Court of Appeals in Patel v. Zemski acknowledges the Seventh Circuit decision, but declines to adopt that Courtís reasoning. The Court finds that case law supports the proposition that aliens are entitled to constitutional due process protection. Furthermore, it adds that mandatory detention infringes on an individualís fundamental liberty interest in being free from physical restraint. Furthermore, as the law subjects all aliens convicted of an aggravated felony to mandatory detention, without regard to the facts and circumstances of each individual, it is not "narrowly tailored," and the government would not incur a significant additional burden in providing for individualized bond hearings. Accordingly, the Court ordered that the appellant, Mr. Patel either be released, or provided with a prompt individualized bond hearing.

This holding is extremely significant as New Jersey, Pennsylvania, Delaware and the Virgin Islands all fall within the Third Circuit and as such, the decision is binding on courts situated in those territories. The holding is also significant in that it contradicts the Seventh Circuit holding and so the issue might be presented to the United States Supreme Court. Significantly, in its last term, the U.S. Supreme Court handed down two "pro-alien" decisions having to do with post-removal order detention and the availability of relief from removal in certain cases. But most reassuringly, the decision lets us know that the system of checks and balances is still alive and that regardless of laws that Congress might pass, there is some hope in the federal courts system to insure that constitutional boundaries are not overstepped.

About The Author

Parastou Hassouri is an associate attorney at the Law Offices of Cyrus D. Mehta. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.